Most of the contracts that citizens make with companies, banks or insurers are not negotiated. They are part of the so-called serial contracting. In traditional language it is said "they are lentils, or you take them or leave them". These contracts affect the most important decisions in life, such as the purchase or rental of a home, or set the conditions for contracting an insurance, a telephone, a trip, a medical operation or a savings account. Its characteristic is the situation of inferiority of the users due to lack of information. Actually they are adhesion contracts and not the result of a negotiation.
This inequality was first addressed by a European directive in 1993 to protect consumers, to correct their situation of inferiority in these contracts and to ensure the proper functioning of the internal market. During the last 25 years the Court of Justice of the European Union (CJEU) has developed this protection and has gone much further than the directive itself. In this matter Spain has given a lot of work to the CJEU to solve the myriad of litigations that flood the courts before the profusion of abuses in this hiring.
This mismatch between the economic reality and the rights of citizens has been addressed in depth by Francisco Javier Orduña, professor of civil law and magistrate of the Supreme Court, as speaker or in his individual votes in several judgments that have been taken as reference by the CJEU The magistrate gave a lecture last week in Barcelona at the Second Consumer Congress, organized by the Bar Associations of Barcelona and Madrid, whose joint action is very constructive for the advancement of citizen rights.
With a crystalline language, Orduña took refuge in the ideas of Zygmunt Bauman, to express the "process of social transformation" in which we are immersed that supposes a "paradigm shift" of social rights and values. Orduña explained that in the serial contracting "there are insufficient legal principles such as freedom and equality of the French Revolution". In his opinion, we need new principles such as transparency, which has been a great driver, ensuring that the consumer has received the necessary information to understand all the economic consequences of the contract.
The judge, who was awarded by the Spanish Association of Consumer Law, a few days after having been by the jurists of Malaga, looks further. He recalled that the way of contracting should have a social function, such as ownership, and that the European standard not only defends consumers, but also pursues a more competitive economy. This means that in the global world Europe wants to build a better system for citizens that is an international benchmark.